Features and Provisions of the Constitution

What DPR must contain? – Justice (Retd) Srikrishna Committee

Introduction: Data is the new oil of economic growth and as the most valuable resource in the digital age, there is an urgent need to regulate access, use and transfer of data to protect public and stakeholder interest.

• Applicability Independent of Location: The committee calls for data localization in certain sensitive sectors alone given the inconveniences the companies may face in the same. Any company which holds the data of Indian citizens irrespective of its location shall be regulated by the DPR laws in the country
• Protected Information: The committee identifies personal data as that which warrants protection. It opines to change the current approach of using identity data as personal information
• Accountability: The committee holds data controllers accountable for any breach of privacy. TRAI has brought out a notification that holds not only controllers of data but also processors and other entities handling data
• User rights
  • The committee opines to account for the consent of the user in accessing data, right of the user to access, rectify and object to the processing of data.
  • It also seeks to enforce the requirement of notification to the user when the company accesses or processes data.
  • TRAI, on the other hand, has recommended that data controllers mandatorily disclose terms and conditions of use before sale of devices and they be seen as mere custodians of data giving full power of data to the user                                                                  
• Technologically Neutral & Interoperability with international standards
• Co-regulatory enforcement regime
• State Responsibility: Bring the state under its purview to protect citizens from state surveillance. In the context of Aadhar linkages with PAN and sim card, this assumes great significance in enforcing accountability on state utilization of citizen data
• It must maintain a balance between protecting individual interests and legitimate state concerns which include national security, investigating and preventing crimes, dissipation of social security benefits, encouraging innovation and spread of knowledge

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Justice Shah Committee

• Consent of User: During the collection of data, the individual’s consent needs to be acquired so that she is able to exercise her right on her personal information on what she is willing to share or not.
• Give users notification of information practices
• Providing them choices
• Data Minimization: Collection of data shall be limited to necessary purposes to reduce the volume of data that will reduce vulnerability to breaches as well as protect citizens from arbitrary usage of personal information
• Access, correction, amendment or deletion of inaccurate information
• Big Data Exceptionalism: Shah committee asserts that while consent of the user is possible and necessary for normal data procurement, the same may not be viable for big data.

Issues with Big Data Exceptionalism

Data Security: Larger the volume of data collected, higher the chances for a security breach of data.

Eg: Equifax in the U.S

Surveillance: Big data collection enables individual behaviour pattern recognition that companies use to decide what to sell, how to sell and where to sell etc compromising individual privacy of choices. It also opens doors for state surveillance on individuals through bank accounts and telecommunications

Eg: AAdhaar-PAN + SIM card

Section 377 of IPC: Section 377 of the Indian Penal Code recognizes sexual intercourse in the LGBT community as a criminal offence as it a sexual act against the order of nature

Issues with Fundamental Rights

• Right to Privacy: The sexual orientation of an individual is one’s private choice. In the Puttuswamy vs Union of India case, the court had held that sexual orientation should be part of one’s privacy under Article 21 and must be restricted arguing to lift Section 377
• Right to Bodily Integrity: An individual is a sole authority vested with the discretion of what can be done with his body. Section 377 violates the same as it puts a restriction on an individual’s choice regarding his body
  • Marital Rape and Abortion
• Right to Equality: The criminalization of sex among the LGBT community is discriminatory as it restricts privileges of sexual activity available to rest of the population to the LGBT community. Section 377 thus violates Article 14 that provides equality before law for all genders in society
• Right to Dignified Life: Section 377 continues to reflect and compound the social stigma and discrimination these communities face. They are legally deprived of sexual activity that are essentially part of their identity in society denying them a dignified life guaranteed under Article 21 of the constitution

Cases associated with it

• Naz Foundation vs Union of India: The court held Section 377 violative of Articles 14, 15 and 21 citing equality, the prohibition of discrimination and dignified life as fundamental rights denied to the LGBT community owing to the criminalization of sex
• Keshav Suri vs Union of India: SC decriminalizes consensual sex between members of the LGBT community. It comments that Section 377 is irrational, arbitrary and unconstitutional. LGBT community as any citizens are to be granted equal rights as per article 14.

Directive Principles of State Policy: Challenges and Conflict with Fundamental Rights

Uniform Civil Code

The Directive Principles of State Policy, in Article 44 of the constitution directs the state to endeavour adoption of a Uniform Civil Code for all citizens in the country.

India being a country of religious plurality the social institutions in the country including marriage and inheritance are governed by personal laws unique to different religions.

 The Constitution aspires that in due course of time as the society becomes progressive, the state shall endeavour to adopt uniform laws for all civil matters for all sections of society to give greater effect to Article 14 granting equality before the law and equal protection before law for all citizens.

Elements in the Debate

No

1. Freedom of Religion: Article 25 and 26 grant freedom of religion and the right to manage its own affairs. Further, Article 26 is not subject to any other fundamental right. UCC may be inconsistent with these freedoms granted by the constitution
2. Religious Minority Safeguards: Drafting a uniform civil code may deprive religious minorities of their unique culture that Article 29 of the constitution guarantees
3. Unity in Diversity: India’s rich cultural diversity entails that enforcing a uniform civil code may alienate different sections. India is yet to be a fully secular society given the public prominence religion continues to hold. Thus, the society needs to evolve to accept the UCC rather than it being enforced upon them
4. Difference and Not Discrimination: A UCC that kills difference thwarts India’s diverse society rather than discrimination within religion. Plurality of the country needs to be in built in positive secularism of our country rather than be subverted by negative secularism of west

Yes

1. Equality Before Law: UCC ensures that in letter and spirit Article 14 is implemented which enables equality before law and equal protection of the law regardless of one’s religious community
2. Gender Equality: UCC can be a step way to removing patriarchal practices that manifest in secular events of marriage, inheritance and education. It can thus enforce Article 14 and 15 of the constitution with regard to gender
   1. Polygamy and Nikkahalala among Muslims
3. Uniform Administration: A coherent civil society is easier to administer for the governance machinery than a personal law-driven society
4. Secular Society: Providing a set of uniform civil laws can be a stepping stone to separating religion from mainstream society. UCC can thus help in creating a secular Indian society on the lines of western democracies

Way Forward

Codification of Personal Laws: The personal laws of different religions need to be codified so that they can be put to the test of various fundamental rights. This can help to arrive at universal principles of equity and equality that can help realise the morals of the constitution yet not subvert the diversity of our country

Conclusion        

                The debate of the UCC is a debate for the society at crossheads in choosing between the individual and the collective. UCC cannot be imposed by the state on a non-secular society with rich sensitive diversity. It shall with the passing of time be a manifestation of the homogeneity that evolves owing to modernity transcending across sections. It is thus very idea that led our founding fathers to enshrine it in Directive Principles rather than fundamental rights.

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Read Also The Nuclear Suppliers Group (NSG)

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Freedom of Speech and Expression

                The concept of freedom of speech and expression entail that individuals would have the right to speak and express freely through any medium of communication in a society subject to certain listed restrictions. Article 19(a) of the Indian constitution guarantees a citizen the same for every Indian citizen.

Restrictions

The fundamental right is however not absolute and must be enjoyed with certain limitations. These are listed as national security, sovereignty and integrity of the nation, decency, peaceful relations with a foreign nation, morality, defamation, contempt of court, incitement of violence or hatred.

Defamation

In India, defamation is a criminal offence that may warrant imprisonment. There has been a discussion in civil society if the clause of defamation is, in reality, a desirable one. The anti-defamation group argues that it restricts the freedom of speech and expression and discourages the right to dissent and criticize which is the life-breath of a democracy.

Why it should be retained?

• Right to Dignified Life vs Freedom of Speech: Defamation inflicts damage on the reputation of an individual in society and denies him the right to dignified life guaranteed by Article 21 which is as important a right as observed by the Supreme Court.
• Reasonable Restriction: The defamation clause is a reasonable restriction on the freedom of expression so that individuals cannot say or publish according to their whims and fancies.
• Inspires Ethical Conduct: The defamation clause ensures that individuals remain responsible for what they say or publish. It can be a strong deterrence to media trials and sensationalism that harbours the media houses of today.

Why it should be discarded?

• Discouraging Criticism: The defamation clause may deter righteous citizens or media from criticizing or dissenting against an individual or a company. When used in the excessive, it curbs the life-breath of democracy
• Encouraging Corruption: Most of the allegations made today centre around corrupt activities of those who hold positions of privilege. A strong defamation law discourages whistleblowing and expose of corrupt activities
• Biased towards Privileged Elite: Defamation law is oft misused to suppress opposing voices by the privileged elite.
• Criminal à Civil: Considering the question of proportions, the defamation law may be amended to involve monetary punishment instead of imprisonment as it seems too harsh a punishment for the committed offence.
• Recommendation of the UNHRC: The UN has called upon nations through its covenant on human rights to decriminalize defamation

Conclusion

The judgment of the Supreme Court elucidates that citizens must not ignorantly exercise their fundamental rights but exercise them correlative to the duty of not to interfere with the liberty of others.

My Opinion

Defamation impinges on the dignity of individual and such tendencies must be strongly resisted in a society. However, its criminalization amounts to excessive and harsh punishment that curbs dissent and criticism which are life breath of the modern democracy. Considering this, a strong civil remedy may be put in place of the criminal law for defamation.